Deportations trump immigrants' pleas to stay in the United States

11.09.15

The issue of immigration has become a centerpiece of the presidential campaign fueled by one-time Republican front-runner Donald Trump’s comments about illegal immigrants. Other politicians have waded into the immigration thicket, while the courts have weighed in, too.

The 8th U.S. Circuit Court of Appeals is the latest, issuing a pair of rulings in the middle of last month. Rejecting pleas by immigrants to remain here, the concurrent cases upheld decisions by the Board of Immigration Appeals for “removal” of the aliens from this country, a more benign legalistic term for what was formally known by the harsher term of “deportation.”

The two cases addressed a number of recurring issues in removal of immigrants from this country.

Persecution problem

A man from India lost his bid for asylum on three grounds in Singh v. Lynch, 495 F.3d 553 (8th Cir. Oct. 14, 2015). The self-described farmer in India and low-level member of an opposition political party sought asylum because of fear of persecution in his homeland, claiming he was attacked twice by members of the controlling party and threatened unless he joined it. Affirming a ruling of an immigration law judge, the 8th Circuit deemed his testimony contradictory, nonresponsive, evasive, and contradicted by other evidence. Furthermore, even if true, his claim “did not reach a cognizable level of persecution to support asylum under 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A), which requires a “well-founded fear of persecution.”

The applicant had a problem proving persecution because his testimony “was not credible [due to] inconsistencies in his testimony and a lack of evidentiary support.” Absent credible testimony, an applicant for asylum must establish persecution with corroborating evidence. However, the alien’s submission fell short of that standard because it was based “almost exclusively on collateral matters and not relevant to the key facts” of the case.

The alien’s challenge to the fairness of the hearing on grounds that he did not receive notice of the need to present corroborating testimony was rejected. Both the immigration judge who heard the case and the board who heard it on the first level of appeal found that the claimant’s “inconsistent reports of persecution [were] insufficiently supported by the record evidence and outweighed by the balance of the totality of the circumstances.” The concession by the claimant that his presentation included “nonresponsive” testimony replete with “inconsistent and inaccurate statements,” also supported denial of his request for asylum and justified removal or deportation.

His claim that he was plagued by ineffective counsel was groundless, the court said. Further, even if there was deficient performance by his lawyer, the claimant’s own inconsistent testimony and demeanor, coupled with his nonresponsive answers to questions about those inconsistencies, warranted denial of his request for asylum.

Under the totality of circumstances, his request for asylum was properly denied and the directive for removal from the country upheld.

Visa violation

While lawfully in the country on a visa, a native of Kenya was ordered removed due to false representations in Muiruri v. Lynch, 2015 U.S. App. LEXIS 17833 (8th Cir. Oct. 14, 2015). A different 8th Circuit panel, which included Judge James Loken of Minnesota, upheld an order for removal on grounds that the Kenyan violated his visa and falsely represented himself as an American citizen when he applied for an adjustment-of-status based on his marriage to a U.S. citizen.

The alien’s assertion of a number of constitutional and legal defenses, including violation of due process and various immigration statutes and regulations, was “forfeited” because he “never objected” to findings by the immigration judge and “did not ask for a hearing, complained that he had not received a hearing, or in any way indicate that he wanted a hearing.” By virtue of his inaction, he relinquished his right to a hearing and his due process, statutory and regulatory violation arguments.

Additionally, he was deportable because he falsely represented his citizenship status by marking an immigration form that he was a “citizen or national of the United States,” coupled with another form in which he stated that he was an American citizen, along with falsely making such a claim in a sworn statement. The series of falsifications violated 8 U.S.C. § 1227(a)(3)(D)(i) because he did “falsely represent” himself as a U.S. citizen. Therefore, he too was ordered deported.

Most aliens contesting deportation orders lose their challenges when brought through the appellate court system. These cases reflect that the outcome of deportation proceedings tend to trump constitutional and administrative rights claimed by aliens in seeking to prevent removal from the country.

PERSPECTIVES POINTERS

Grounds for “persecution” to obtain asylum:

Infliction or threat of death, torture, or injury;

Based on “protected” characteristics;

Must include “political opinion”;

Must be caused by foreign government or attributable to organization it is unwilling or unable to control.